Dan Herz and the Deerfield Beach Playbook
for Creating a Federal Problem
By Chaz Stevens | REVOLT Insights
For those not familiar, let me tell you about Dan Herz.
Perineal candidate. Zero-time winner. Full-time hothead.
Herz has made something of a hobby out of showing up at Deerfield Beach City Commission meetings — red-faced, flatulent, grievance-loaded, and apparently, in at least one recent instance, hard enough on city property to break an exit on his exit. That’s not a metaphor. The man reportedly broke a door — the only thing he’s ever managed to break through in City Hall.
This is also the same bloke who, after exhausting every legal avenue trying to fee-shift his $8,000 in attorney’s fees onto me — and failing — turned around and tried to stick the City of Deerfield Beach with the tab. Let that sink in. When the courts wouldn’t make me pay, he went looking for a different pocket. The taxpayers’ pocket.
That’s not advocacy. That’s a shakedown with a filing fee attached.
Here’s where I get serious. And where the City should pay very close attention.
I’ve been doing First Amendment work for three decades. I’ve litigated it, and currently litigating it, pro se in federal court. I’ve lost cases. I’ve also won the war — repeatedly — and I know the difference.
Which takes me to Fane Lozman.
Lozman is my spirit animal. He went to SCOTUS twice, pro se to start, and beat a city both times. He didn’t win every skirmish. He won what mattered. I know Fane personally, and we’ll be presenting together at an IMLA (international Municipal Lawyers Association – the very city attorneys sitting on the dais) Continuing Legal Education session later this year on physical and digital public forum discrimination. Joining us will be Simon Tam — yes, that Simon Tam, the Slants frontman and Supreme Court petitioner from Matal v. Tam. Three SCOTUS-adjacent people, one stage, one very important message.
My own Stevens v. LaMarca — grounded in Lindke v. Freed — is working its way through the system with what I’ll carefully describe as a possible SCOTUS-leaning trajectory. I don’t say that to brag. I say it because I live and breathe this stuff. I know exactly what these cases look like from the inside, at every stage, and I know precisely what municipalities that turns a nuisance complaint into a landmark ruling.
* To be transparent, I am not a lawyer, I do, however, teach lawyers via CLEs.
So, when I say “Lozman II,” I’m not name-dropping. I’m issuing a warning from someone who has been in the arena.
In Lozman v. City of Riviera Beach, 585 U.S. 293 (2018), the Supreme Court held that a municipality could face First Amendment retaliation liability even when a single arrest was supported by probable cause — if that arrest was part of a broader policy of retaliation against protected speech. The Court didn’t need a bad arrest. It needed a pattern. A motive. A paper trail of hostility.
And when Riviera Beach finally ran out of runway? They’d burned through over $1 million in legal fees and wrote Lozman a check for $875,000 to settle. Nearly two million dollars — because elected officials couldn’t tolerate a loudmouth at a podium. Riviera Beach wanted a win. What they got was a million-dollar seminar on humility.
And bitch-slapped by the former marine.
Deerfield Beach: look at your pattern.
If Herz is being singled out, surveilled, or treated differently at public meetings because of the content of his speech — however obnoxious, however loud, however door-damaging — you have a problem. The First Amendment does not require speakers to be pleasant. It does not require them to be reasonable. It does not require them to have won an election. A slew of losses at the ballot box does not diminish one syllable of protected speech at a public podium.
Lozman II Applied: Official Speech vs. Official Retaliation
The core principle of Lozman v. City of Riviera Beach, 585 U.S. 87 (2018) is this: government officials cannot use official machinery to punish citizens for prior protected speech. The trigger is not what officials say — it’s what officials do with state power in response to protected speech.
The Critical Distinction
An elected official calling a resident’s speech “ignorant” at a podium? Legally uncomfortable. Not actionable. An official directing armed deputies to remove a specific person because of their prior speech? Constitutional flashpoint. A closed-door council session producing a documented plan to intimidate a critic? Official policy of retaliation — full Lozman II exposure.
The Pattern Rule
A single threatening statement is a data point. Coordinated official conduct across multiple incidents — documented through meeting transcripts, public records, and chronological sequencing — is the §1983 liability. Courts look for the pattern, not the isolated moment.
The Evidentiary Backbone
Lozman II claims live and die on documents: closed-session transcripts, meeting minutes, email chains, public records. The Riviera Beach council’s own transcript — showing explicit discussion of an intimidation strategy — was the linchpin of the case. Your paper trail is either your liability or your defense. There is no middle ground.
Teaching Example: 2011 Deerfield Beach BSO
A BSO district commander once stood at a Deerfield Beach city commission meeting and defended his agency against a blogger’s racial-bias criticism, calling it “ignorant” and “irresponsible.” Legally thin on its own. But mid-speech he added: “We let you talk. If he talks again, I want him removed. I’ve got two deputies here.”
That single sentence shifted the entire analysis. Official machinery — armed deputies — was being threatened as a direct response to prior protected speech. Whether it ripens into a Lozman II claim depends on whether it was carried out and whether it formed part of a documented pattern.
David “Cocaine Cowboy” Cody was that blogger. Watch it for yourself:
https://www.youtube.com/watch?v=HyIvyForhhE
Official rhetoric ≠ retaliation. State machinery + prior protected speech + documented pattern = §1983 exposure. Build your case from the paper trail.
So what should the City actually do? Here’s my advice, free of charge.
Understand Herz’s natural habitat. His ball field is the comments section — a small, albeit vocal congregation of what I’ll charitably describe as intellectually-bereft dingleberries. That’s where Dan thrives. That’s where Dan belongs.
Let him scream. Let him shout. That’s the First Amendment — messy, noisy, and thank God, still protected under federal law. And here’s the strategic beauty of it: keeping Dan in the comments keeps Dan out of the Southern District of Florida. That is an outcome everyone at City Hall should be highly motivated to achieve.
Send him a bill for the door. Send him some chamomile tea. Gently suggest he lay off the espresso — or whatever else, be it from Peru or not, might be fueling the 11pm Facebook manifestos. But do not, under any circumstance, give him an easy layup under Lozman II.
Treat him like what he is: a frustrated multi-time loser who has found his audience in the comments section and his therapy in the public podium. Boring, content-neutral, procedurally consistent treatment is your best friend here. Not suppression. Not retaliation. Not a dramatic removal that ends up as Exhibit A in a federal complaint.
I know Fane Lozman personally. I’ve worked with him. I’ll be sharing a stage with him.
Dan Herz is no Fane Lozman. Herz is, at best, a factory second of a factory second. Albeit in an ill-fitting JC Penney suit (bought circa 1987).
But if you hand him the rope, he doesn’t need to be.
One More Thing Worth Considering
Dan Herz has run for office and lost. I’ve lost count. He may run again. Elections are unpredictable.
If Herz wins, he moves from the comments section to the dais. A sitting commissioner brings a fundamentally different legal profile — social media accounts, official communications, votes, and public statements all become subject to Lindke v. Freed analysis overnight.
I conduct Lindke compliance audits for municipalities through REVOLT Insights — a structured review of how elected and appointed officials use digital platforms, with a documented risk score and remediation roadmap. It is, in the current legal environment, essential future-proofing.
The time to audit is before there’s a problem. Not after someone files in the Southern District.
The trap is obvious. Don’t step in it.
Hot-headed speakers are a gift to municipalities that want to justify retaliation. They make it easy. They make it feel righteous. But “he’s a dick” has never been a constitutional defense, and Lozman II made sure it never will be.
Train your commissioners. Brief your city attorney. Document your content-neutral enforcement policies before you need them, not after.
Because the next CLE I teach might feature Deerfield Beach — not in the audience, but in the syllabus.
Chaz Stevens is a civic activist, municipal governance consultant, and twice-elected Housing Authority Commissioner in Deerfield Beach. He holds an M.S. in Computer Science and is IMLA CLE Faculty. His consulting practice, REVOLT Insights, specializes in First Amendment compliance audits for municipalities.
